By hood or by crook?
The CO of 1954 could be abrogated along with Article 370 at the recommendation of Kashmir Constituent Assembly (or, in my opinion, its successor the Kashmir Legislative Assembly) and not at the pleasure of the president or the Supreme Court of India
Article 35A of the Indian constitution has of late become a bone of contention between New Delhi and Kashmir because Kashmiris fear that it would enable New Delhi to change their demography from Muslim majority to non-Muslim majority. And it seems the present ruling dispensation in New Delhi is hell-bent on its abrogation, having failed to provide good governance to the country and therefore, in order to gain political mileage with non-Muslim majority of India, they raise issues which my flare up communal passions. Their contention is that they can abrogate this Article unilaterally without undergoing the formality of obtaining concurrence from the Kashmir government and Kashmir legislature.
Article 35A was/is part of the executive order issued by the president of India called Constitution (Application to Jammu and Kashmir) Order, 1954. The president issued this Order on 14 May 1954 under Article 370 of the constitution of India. It superseded the constitutions (Application to Jammu and Kashmir) Order, 1950 which till then defined the India-Kashmir constitutional relationship.
Prior to 26 January 1950 the constitutional relationship between Kashmir and India rested on the Instrument of Accession executed by the maharaja in the last week of October 1947. The IoA gave New Delhi authority on three central subjects of defence, foreign affairs and communications. Clause 7 of the Accession document made it clear that: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution.” Had the constitutional relationship between India and Kashmir continued on the basis of the IoA and/or had New Delhi allowed a plebiscite to take place in Kashmir, then the position in Kashmir would have been better.
But when on 26 January 1950 New Delhi succeeded, with the active assistance of Prime Minister Sheikh Abdullah and Prince-Regent Karan Singh, to change this constitutional relationship from IoA to Article 370, Kashmir’s semi-independent/autonomous status was doomed. Article 370 could be (and was) used as a device to end the existence of Kashmir as a separate semi-independent/autonomous state because it provided for extension of powers of Indian parliament to make laws for the state on matters in addition to those already listed under the provisions of IoA, however, subject to the concurrence of government of Kashmir and Kashmir Constituent Assembly as and when convened – the Kashmir Constituent Assembly was convened in 1951 and remained extant till 1956 when it was replaced by Legislative Assembly.
The CO of 1954 extended the jurisdiction of the Indian parliament from the central subjects of defence, foreign affairs and communications to all subjects on the Union List, albeit subject to exceptions and modifications thereby annexing Kashmir as part of India and declaring Kashmiris as citizens of India (without first taking the promised plebiscite). However one of the exceptions taken by this Order(among other exceptions) and incorporated in the constitution of India as Article 35A gave protection to laws already in force in Kashmir with respect to permanent residents(state subjects they were called formerly).
Article 35A laid down that: “Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State, – (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects – (i) employment under the State Government; (ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, – shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”
The CO of 1954 (which included Article 35A) was applied to Kashmir with the concurrence of the Kashmir Government and Kashmir Constituent Assembly – (by the way this assembly and this government were actually unelected renegades). Thus it was an agreement between two parties, i.e., Kashmir government as represented by renegades and India as represented by those who had promised a plebiscite in Kashmir.
The CO of 1954 could be abrogated along with Article 370 at the recommendation of Kashmir Constituent Assembly (or, in my opinion, its successor the Kashmir Legislative Assembly) and not at the pleasure of the president or the Supreme Court of India. Should the Supreme Court of India scrap Article 35A it would be a purely political decision rather than a judicial one. And it would constitute a breach of agreement on part of India. The concurrence of the Government and the Legislature of Kashmir for scrapping this Article is as a must. It cannot be scrapped unilaterally by any Indian Institution, be that the Supreme Court or the president of India who happens to be a part of the parliament of India.
But then a question arises as to why should the Kashmir government or legislature recommend to the president of India abrogation of Article 35A or give concurrence to its scrapping? It would be far better for them to recommend in-toto abrogation of Article 370 along with CO of 1954 and the subsequent 46 amendments effected to it from 1956 to 2017( the GST amendment being the latest). Such a measure will end the constitutional relationship between Kashmir and India (and also end the political uncertainty that this relationship has bred in Kashmir) because abrogation of Article 370 would mean abrogation of Article 1 of Indian constitution in its application to Kashmir because this Article (Article 1 which deals with the name and territory of India) applies to Kashmir only through Clause 1(c) of Article 370 which lays down that: “the provisions of article 1 and this article[Article 370] shall apply in relation to that State[Kashmir]”. Such a course will help Kashmir to renegotiate its relationship not only with India but also with Pakistan so as to rid itself of the political uncertainty that has plagued it since 1947. For adopting such a course of action, Kashmir would need to shun its election boycott fixation imposed upon it by Hurriyat Conference especially by its Geelani faction.
Should Kashmir succeed to free itself of the election boycott fixation, participate in elections, displace the “mainstream” turncoats, and as a result throng the Legislative Assembly, New Delhi administration may start contending that only Kashmir Constituent Assembly had the power to recommend abrogation of Article 370 and of the CO 1954. To this development Kashmir may forward a counter argument that in that case the 45 amendments effected in the CO 1954 post 1957 (Ist amendment was effected in 1956 during the lifetime of KCA) should be declared null and void because there was no Constituent Assembly post-1957 whose concurrence was mandatory for such constitutional amendments.